Many will recall the abject failure of German security forces to deal with the terrorist attack on the Munich Olympics in 1972. The situation was not assisted by a television station which broadcast live coverage of police preparing to storm the terrorists’ position. In their enthusiasm for a breaking story, the reporters had overlooked the blindingly obvious possibility that the terrorists had access to a television. The rest is tragic history.
Similar concerns appear to be behind the circular issued on 25 September by Rear Admiral Nick Wilkinson, secretary of the Defence, Press and Broadcasting Advisory Committee, reminding media organisations to be careful about publishing "speculation about intelligence and security activities and intentions". The circular – it is not a formal DA-notice – makes the point that "informed speculation may come very close to the truth. It would be operationally very helpful therefore, and a reassurance to those who may be going into action in the coming days or months, if editors could now minimise such speculation, whether by their own journalists or by retired military people."
The DA-notice system is entirely voluntary and is not legally binding. It is a system of self-censorship in matters affecting national security. The secretary of the committee is available for consultation on a 24-hour basis to advise on publication of material which falls within the six standing DA-notices. The notices are available online at www.dnotice.org.uk. They cover a number of topics, including nuclear weapons and communications facilities, but those most likely to be relevant at present are DA-notice 1 (military operations, plans and capabilities) and DA-notice 5 (security and intelligence services and special forces).
Even if news organisations choose to bypass the DA-notice system, under s.5 Official Secrets Act 1989 it is a criminal offence to publish information protected by the act (which includes that concerning security and intelligence, defence and international relations) unlawfully disclosed by a current or former Crown servant (for example, an ex-SAS member) if publication of such information is damaging and the journalist knows or has reasonable cause to believe it to be so. The 1989 act is not straightforward and creates more than a dozen further offences.
Under s.82 Criminal Justice and Public Order Act 1994, it is now a criminal offence to collect or record any information likely to be useful to terrorists in planning or carrying out any act of terrorism and to possess any document containing such information. There is, however, a defence of "reasonable excuse" which may be available to a reporter engaged in legitimate newsgathering.
Even where editors are confident that no criminal offence is likely to be committed, and that advice need not be sought from the DA-notice committee, the Ministry of Defence may seek to prevent publication by relying on the civil law of confidence, particularly where information has been obtained from serving or former members of the armed forces.
Finally, there is the risk of inadvertently playing into the hands of terrorists by overstating the threat. Headlines recently published in the Daily Express have included "Bin Ladin hit squad loose in Britain", "Britain in germ terror alert" and "I’ll nuke Britain says evil Bin Ladin". Plainly the media has a duty to report current events, but, as Kim Fletcher put it in The Daily Telegraph, "papers must also find that fine line between communicating information and generating panic".
David Engel, partner in the media and internet litigation group at Theodore Goddard